YOUR LEGAL RIGHTS | Can a worker be fired for refusing to be vaccinated against COVID-19?

Attorney David BetrasNews about the approval of COVID-19 vaccines has raised two things: hope that the pandemic will end in the not too distant future and lots of questions including the one I’ve been asked most: Can a worker be fired if their employer requires them to be vaccinated and they refuse?

The answer is, with limited exceptions, “yes.”  That’s because in “will-to-work” states like Ohio employees can be fired for a good reason, a bad reason, or no reason at all. Your boss doesn’t like the way you said “hello” when you walked in? You’re gone. Won’t be vaccinated? Hasta la vista baby, you’re out of there.

Professor Dorit Reiss of the University of California Hastings College of Law puts it succinctly: “Requiring a vaccine is a health and safety work rule, and employers can do that.” And they can show workers the door for failing to abide by the rule.

Some people have reacted with surprise and anger when told they can be canned for refusing to be vaccinated. “I’ll sue,” they say emphatically. “Forcing me to have that needle stuck in my arm violates my Constitutional rights!”

Well, not so much.

What most folks don’t know is that workplace vaccination requirements aren’t new and they passed Constitutional muster long ago. The health care industry provides a prime example. State and federal courts have repeatedly ruled providers can compel workers to be immunized against the flu and numerous other diseases. Don’t want to do it? That’s cool. Turn in your stethoscope, take off your lab coat, and don’t let the door hit you in the posterior on your way to a new career.

Doctor holding vial of Covid vaccineAbout the exceptions, I mentioned earlier. They exist, but they are incredibly difficult to secure.  Under Title VII of the Civil Rights Act of 1964 employers must make “reasonable accommodations” for workers who object to being immunized due to their “sincerely held” religious beliefs. Here’s a tip: personal or ethical objections like those harbored by members of the “anti-vax” movement generally won’t qualify as a religious belief.

In addition, people whose medical conditions could be worsened or impacted by the COVID-19 vaccine may use the provisions of the Americans with Disabilities Act (ADA) to force employers to make exceptions to a vaccine work rule. Here are some important points to ponder before seeking an exemption under these federal laws: the burden of proof falls squarely on the employee seeking the exemption, reasonable accommodations must not create an undue burden on employers, and in almost all instances the ADA’s “direct threat standard” trumps the reasonable accommodation rule. Oh, and you’re most likely going to need an attorney to assist in the process.

Finally, here’s the question that follows the question about vaccination requirements: If I’m fired for refusing to be immunized, will I be eligible for unemployment compensation (UC)? While the rules related to COVID-19 are unsettled, workers terminated for violating existing immunization mandates generally do not qualify for UC.

That’s another factor to consider as you decide whether or not to roll up your sleeve when the vaccine comes to a neighborhood near you.

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